Breaking Down the Sexual Offences Act
Today, I will break down Section 77 of the Sexual Offences Act, Cap 8:03, Laws of Guyana (“the SOA”), which focuses on protecting the dignity and privacy of complainants under the age of 16 in sexual offence proceedings.
This section places strict limitations on the use of evidence about a complainant’s prior sexual activity.
The prohibition and exceptions
Section 77(1) establishes that, in cases where the complainant is under 16, no evidence of their sexual activity (with the accused or anyone else) can be introduced unless the court determines, following the procedure in the Second Schedule of the SOA, that such evidence meets one of the following exceptions:
1.Criminal Sexual Activity Involving a Third Party (Section 77(1)(a)): The evidence must relate to criminal sexual activity involving the complainant and must be supported by evidence of a conviction of a third party for this criminal activity.
2.Explaining Inappropriate Sexual Knowledge or Motive to Lie (Section 77(1)(b)): The evidence is admitted showing that the complainant’s inappropriate sexual knowledge did not come from the accused or that the complainant had a motive to fabricate the allegation.
3. Significant Relevance to the Facts in Issue (Section 77(1)(c)): The evidence must concern facts that are sufficiently similar to the facts in issue and have significant relevance to the case.
Balancing relevance and prejudice
Section 77(2) provides further safeguards by requiring the court to balance the probative value of any proposed evidence against its potential to prejudice the proper administration of justice or harm the complainant’s dignity and privacy. Evidence can only be admitted if:
1. It is material to a fact in issue; and
2. Its value outweighs any potential inflammatory
or prejudicial effect.
The Rationale for Section 77
This section addresses the historical misuse of a complainant’s sexual history in sexual offence trials, which often led to the unjust discrediting of victims. Such evidence was sometimes used to perpetuate harmful stereotypes about complainants’ character or credibility, especially young and vulnerable ones.
In the context of complainants under 16, the law acknowledges their heightened vulnerability and the need for greater protection. By limiting the admissibility of sexual history evidence, Section 77 ensures that:
1. trials remain focused on the alleged offence rather than the complainant’s personal history; and
2. complainants are treated with respect and dignity, reducing the risk of secondary victimisation during court proceedings.
Evidence of a Conviction for Criminal Sexual Activity
Imagine a case where a 15-year-old complainant accuses a neighbour of sexual abuse. The defence attempts to introduce evidence that the complainant had previously been involved in sexual activity with another adult. Under Section 77(1)(a), the court will allow this evidence only if it relates to criminal sexual activity for which the other adult had already been convicted. This protects the complainant from baseless accusations while ensuring that relevant, legally proven facts can be considered.
Section 77 strikes a delicate balance between the rights of the accused to a fair trial and the need to protect the complainant from undue humiliation and or prejudice. By restricting evidence of a complainant’s prior sexual activity, the law aligns with modern principles of justice, which recognise that such evidence is often irrelevant to the credibility of the complainant or the guilt of the accused.
Section 77 of the SOA is an essential safeguard in the justice system. It ensures that the trial process respects the complainant’s personal dignity and privacy while preserving the integrity of the legal process. These protections, along with other provisions in the SOA, reflect Guyana’s commitment to protecting the rights of victims of sexual offences, particularly the most vulnerable among them.
